Citation Nr: 1022105
Decision Date: 06/15/10 Archive Date: 06/24/10
DOCKET NO. 06-22 718 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Philadelphia, Pennsylvania
THE ISSUE
1. Prior to May 12, 2006, entitlement to an initial rating
in excess of 50 percent for posttraumatic stress disorder
(PTSD).
2. From May 12, 2006, entitlement to a staged rating in
excess of 70 percent for posttraumatic stress disorder
(PTSD).
3. Entitlement to a total disability rating based on
individual unemployability (TDIU).
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
T. M. Gillett
INTRODUCTION
The Veteran served on active duty from October 1965 to
October 1968.
This matter comes to the Board of Veterans' Appeals (Board)
from a February 2005 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Philadelphia,
Pennsylvania, which, in pertinent part, granted the Veteran's
claim for service connection for posttraumatic stress
disorder (PTSD), assigning a 50 percent rating effective
January 28, 2003, the date of the claim. In October 2005,
the Veteran filed a Notice of Disagreement (NOD),
specifically disagreeing with the rating assigned for his
PTSD disorder. In May 2006, the RO issued a Statement of the
Case (SOC) and, in July 2006, the Veteran filed a substantive
appeal to the Board. In August 2006, the RO issued both a
rating decision, re-evaluating the Veteran's PTSD as 70
percent disabling, effective May 12, 2006, and a Supplemental
Statement of the Case (SSOC) denying a further increase.
In December 2007, the Veteran presented testimony at a Travel
Board hearing at the RO before the undersigned Acting
Veterans Law Judge. A transcript of that hearing has been
associated with the claims folder.
On the date of the hearing, the Veteran requested that the VA
obtain all current VA records regarding treatment for PTSD
and submitted a form waiving RO consideration of all procured
records. The VA subsequently procured these records. This
newly acquired evidence has not yet been considered by the
RO, the agency of original jurisdiction. However, because
the record contains a waiver of RO consideration, the Board
accepts it for inclusion in the record and consideration by
the Board at this time. See 38 C.F.R. §§ 20.800, 20.1304
(2009).
The issue of entitlement to TDIU is addressed in the REMAND
portion of the decision below and is REMANDED to the RO via
the Appeals Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. Throughout the entire period at issue, the Veteran's PTSD
has been manifested by occupational and social impairment
with deficiencies in most areas such as work, family
relations, judgment, thinking and mood.
2. The Veteran's symptoms include near-continuous depression
affecting his ability to function independently,
appropriately, and effectively; impaired impulse control,
including many noted instances of unwarranted violence;
difficulty in adapting to stressful circumstances due to a
low frustration threshold; an inability to establish and
maintain effective relationships; and GAF scores ranging from
39-50.
CONCLUSIONS OF LAW
1. Prior to May 12, 2006, the criteria for a disability
evaluation in excess of 70 percent, but no greater than 70
percent, for the Veteran's service-connected posttraumatic
stress disorder (PTSD) have been met. 38 U.S.C.A. §§ 1155,
5107 (West 2002 & Supp. 2009); 38 C.F.R. § 4.130, Diagnostic
Code (DC) 9440 (2009).
2. From May 12, 2006, the criteria for a disability
evaluation in excess of 70 percent for the Veteran's service-
connected posttraumatic stress disorder (PTSD) have not been
met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2009); 38
C.F.R. § 4.130, Diagnostic Code (DC) 9440 (2009).
REASONS AND BASES FOR FINDING AND CONCLUSIONS
I. The Veterans Claims Assistance Act of 2000 (VCAA)
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA). See Pub. L.
No. 106-475, 114 Stat. 2096 (2000), codified at 38 U.S.C.A.
§§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009). The
VCAA provides, among other things, for notice and assistance
to VA claimants under certain circumstances. VA has issued
final rules amending its adjudication regulations to
implement the provisions of the VCAA. See generally 38
C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). The
intended effect of these regulations is to establish clear
guidelines consistent with the intent of Congress regarding
the timing and the scope of assistance VA will provide to a
claimant who files a substantially complete application for
VA benefits or who attempts to reopen a previously denied
claim.
a. Duty to Notify. VA has a duty to notify the appellant of
any information and evidence needed to substantiate and
complete a claim. 38 U.S.C.A. §§ 5102, 5103. In order to
meet the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b), VCAA notice must (1) inform the claimant about
the information and evidence necessary to substantiate the
claim; (2) inform the claimant about the information and
evidence that the VA will seek to provide; and (3) inform the
claimant about the information and evidence the claimant is
expected to provide. VCAA notice should be provided to a
claimant before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim. See Pelegrini v.
Principi, 18 Vet. App. 112 (2004).
Additionally, on March 3, 2006, the United States Court of
Appeals for Veterans Claims (Court) issued a decision in
Dingess v. Nicholson, 19 Vet. App. 473 (2006), that held that
the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and
38 C.F.R. § 3.159(b) apply to all five elements of a service
connection claim. Those five elements include (1) the
Veteran's status; (2) the existence of a disability; (3) a
connection between the Veteran's service and the disability;
(4) the degree of disability; and (5) the effective date of
the disability. The Court held that upon receipt of an
application for a service connection claim, 38 U.S.C.A. §
5103(a) and 38 C.F.R. § 3.159(b) require VA to review the
information and the evidence presented with the claim, and to
provide the claimant with notice of what information and
evidence not previously provided, if any, will assist in
substantiating or is necessary to substantiate the elements
of the claim as reasonably contemplated by the application.
Id. at 486. This notice must also inform the Veteran that a
disability rating and an effective date for the award of
benefits will be assigned if service connection is granted.
Id.
The Board notes that the RO did not issue the proper VCAA
notice regarding PTSD that would substantially satisfy the
provisions of both 38 U.S.C.A. § 5103(a) and Dingess until
December 2006, after the provision of the February 2005
rating decision from which this appeal arises. In Pelegrini
v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II), the
Court held, in part, that a VCAA notice, as required by 38
U.S.C. § 5103(a), must be provided to a claimant before the
initial unfavorable agency of original jurisdiction (AOJ)
decision on a claim for VA benefits. Moreover, after the
provision of the late notice, the RO did not subsequently
cure the error by re-adjudicating the claim. See Prickett v.
Nicholson, 20 Vet. App. 370, 376-78 (2006) (indicating that
late notification may be accomplished by issuing a fully
compliant VCAA notification and then re-adjudicating the
claim in the form of a statement of the case to cure timing
of notification defect). However, as the Veteran was granted
service connection for PTSD, the Board finds this to be
harmless error. In Dingess, the Court held that in cases in
which service connection has been granted and an initial
disability rating and effective date have been assigned, the
typical service connection claim has been more than
substantiated, it has been proven, thereby rendering section
5103(a) notice no longer required because the purpose that
the notice is intended to serve has been fulfilled. Dingess,
19 Vet. App. at 490-91; see also 38 C.F.R. § 3.159(b)(3)(i)
(2008). Moreover, as the claim for an initial rating for the
Veteran's PTSD is a downstream issue from that of service
connection, additional notice also was not required when the
RO developed this claim. See VAOPGCPREC 8-2003 (Dec. 22,
2003).
Also, the evidence does not show, nor does the appellant
contend, that any notification deficiencies, with respect to
either timing or content, have resulted in prejudice. The
record raises no plausible showing of how the essential
fairness of the adjudication was affected.
b. Duty to Assist. The Board finds that all necessary
assistance has been provided to the Veteran. The evidence of
record indicates that VA acquired the Veteran's VA treatment
records to assist the Veteran with his claims. There is no
indication of any additional relevant evidence that has not
been obtained. The Veteran was provided with VA PTSD
examinations that were thorough and productive of medical
findings allowing for the rating of the disorder on appeal.
As such, there is no duty to provide an additional
examination or medical opinion. 38 U.S.C.A. § 5103A(d); 38
C.F.R. § 3.159(c)(4).
In view of the foregoing, the Board finds that VA has
fulfilled its duty to notify and assist the appellant in the
claims under consideration. Adjudication of the claims at
this juncture, without directing or accomplishing any
additional notification and/or development action, poses no
risk of prejudice to the appellant. Bernard v. Brown, 4 Vet.
App. 384, 394 (1993).
II. Initial and Staged Ratings
Disability evaluations are determined by the application of a
schedule of ratings that is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155. Percentage
evaluations are determined by comparing the manifestations of
a particular disorder with the requirements contained in the
VA's Schedule for Rating Disabilities (Rating Schedule), 38
C.F.R. Part 4. The percentage ratings contained in the
Rating Schedule represent, as far as can practically be
determined, the average impairment in earning capacity
resulting from such disease or injury and their residual
conditions in civilian occupations. 38 U.S.C.A. § 1155; 38
C.F.R. § 4.1.
Where the appeal arises from the original assignment of a
disability evaluation following an award of service
connection, as in this case, the severity of the disability
at issue is to be considered during the entire period from
the initial assignment of the disability rating to the
present time. Separate ratings can be assigned for separate
periods of time based on the facts found, a practice known as
"staged" ratings. See Fenderson v. West, 12 Vet. App. 119
(1999).
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7 (2005).
It is the defined and consistently applied policy of the VA
to administer the law under a broad interpretation,
consistent, however, with the facts shown in every case. Any
reasonable doubt regarding the degree of disability is
resolved in favor of the Veteran. See 38 C.F.R. § 4.3.
The Board has reviewed all of the evidence in the Veteran's
claims folder. Although the Board has an obligation to
provide reasons and bases supporting this decision, there is
no need to discuss, in detail, the extensive evidence of
record. Indeed, the Federal Circuit has held that the Board
must review the entire record, but does not have to discuss
each piece of evidence. Gonzales v. West, 218 F.3d 1378,
1380-81 (Fed. Cir. 2000). Therefore, the Board will
summarize the relevant evidence where appropriate, and the
Board's analysis below will focus specifically on what the
evidence shows, or fails to show, as to the Veteran's claim.
In a November 2002 VA treatment record, the Veteran reported
experiencing frequent anger and several actual physical
altercations. He stated that he was also having vivid
dreams.
In an April 2002 VA treatment record, the Veteran reported
having chronic PTSD since returning from service in Vietnam.
He indicated that he sought treatment after people told him
that he had a problem with depression and anger. He also
stated that his wife left him seven months prior because he
was "crazy." He claimed to have anhedonia, low energy,
sleep disturbance, weight loss of 40 pounds in 1.5 years due
to increased food intake, and lack of sexual desire. He
indicated experiencing a lifelong problem with anger,
typified by fighting, jumping out of cars in traffic to
threaten other drivers, loss of friends because of violent
tendencies, and ruining parties with angry outbursts. He
also reported having flashbacks to Vietnam. He experienced
nightmares and an extremely hypervigilant startle response.
He hated crowds and felt that his breathing became faster
when he felt crowded. He stated that he was no longer
working and was living with his mother. He indicated that he
did not have a significant relationship outside his family.
He stated that he was put on probation in juvenile detention
and was briefly incarcerated as an adult for assault and
battery. Upon examination, the examiner noted that the
Veteran was casually dressed and well groomed. He was
cooperative, making good eye contact, except when he
occasionally looked at the floor. He showed some psychomotor
agitation, especially late in the interview when he asked to
smoke or when he became angry. His speech was of normal
rate, rhythm and volume. His mood was depressed. His affect
was dysphoric and constricted. However, the Veteran did
laugh a few times. His thoughts were linear and logical in
form. He indicated that he had no suicidal or homicidal
ideation at the time, but stated that he had thought about
hurting others and had given away his guns. Memory was
intact. The diagnoses were Major Depressive Disorder
secondary to PTSD or major depressive disorder concurrent
with PTSD. The Global Assessment of Function scores were 45
to 50, indicative of serious symptoms or any serious
impairment in social or occupational functioning (e.g., no
friends, unable to keep a job).
In a June 2002 VA treatment record, the examiner noted that
the Veteran's mood was irritable and restless. The Veteran
stated that he feared losing control and that his anger had
alienated him. He stated that he was still disturbed by
nightmares and flashbacks. He indicated that he wished to
die, but denied any suicidal or homicidal plans. The
examiner noted no evidence of psychosis.
In a September 2002 statement, a VA examiner stated that the
Veteran had chronic PTSD with frequent nightmares,
irritability, outbursts of anger, and impulsive destructive
behavior. The examiner noted that the Veteran was taking
medication to reduce his impulsive behavior. Overall, the
examiner reported that the prognosis was poor.
In a December 2002 VA treatment record, the Veteran reported
significant softening of his temper. He denied any suicidal
or homicidal ideation. There was no evidence of psychosis.
In a March 2003 private examination report, the Veteran
reported that his last employment position was that of a dock
worker. He indicated that he left this position in February
2001 due to his emphysema. He stated that he began abusing
alcohol in 1968, but stopped drinking six years prior. He
currently lived with his brother. He stated that he was able
to perform most household chores and keep his apartment
clean. He indicated that he was able to shower, groom, shop,
manage money, and feed himself independently. He reported
that he was able to drive, but would tend to get into
arguments. He stated that he had gotten into an argument
while driving on the way to the interview. He indicated that
he was able to take public transportation when necessary. He
reported explosive episodes of anger and indicated that he
might throw things or hit people. He denied present suicidal
ideation and stated that he last had suicidal ideation a year
and a half prior to the interview. He reported frequent
flashbacks and startle response. He stated that he had lost
interest in former activities such as fishing and going to
the casino. He was negative for both auditory and visual
hallucinations and no delusions were elicited. Upon
examination, the examiner indicated that the Veteran's gait
and posture were normal; and his speech was spontaneous at a
normal rate/volume. The examiner further noted that the
Veteran's attention was good; his concentration was intact;
his abstract reasoning was good; and his short term memory
was normal. The examiner indicated that the Veteran's social
and test judgment were both grossly impaired. When asked
what he would do if he found a wallet on the street, the
Veteran indicated that he would keep it. When queried what
he would do if he were the first person in a movie theater to
smell and see fire, he stated that he would close the doors
and leave everyone in the theater to die. The examiner noted
that he showed no remorse. The diagnoses were chronic PTSD,
intermittent explosive disorder, alcohol dependence in
sustained full remission and rule/out antisocial personality
disorder. In assessing the severity of the Veteran's mental
disorders, the examiner stated that the Veteran had moderate
to severe limitations due to a combination of mental and
physical disorders.
In a May 2003 decision, the Social Security Administration
determined that the Veteran was disabled primarily due to
emphysema, and secondarily due to PTSD. .
In a July 2003 VA treatment record, the examiner noted that
the Veteran was in good spirits, although somewhat anxious,
but neither depressed nor irritable. There were no
complaints of symptoms of PTSD, no suicidal ideation, and no
homicidal ideation. The GAF score was 45.
In a January 2005 VA psychiatric examination report, the
Veteran reported experiencing frequent, vivid flashbacks
regarding service in Vietnam; avoidance of reminders of his
experiences in Vietnam; hypervigilance; and chronic
irritability associated with decreased frustration tolerance
and outbursts of anger. Upon examination, the examiner
stated that the Veteran was neatly dressed, well-groomed,
cooperative, and friendly. He indicated that Veteran's
speech, psychomotor functions, and cognitive functions were
all within the normal range. The Veteran's mood was euthymic
and his affect was anxious. He showed no evidence of
hallucinations or psychotic thinking. He denied both
suicidal ideation and homicidal ideation. He had chronic
insomnia. His appetite was fair and his energy level was
good. His insight and judgment were both good. The
examiner's diagnosis was, in pertinent part, PTSD. Having
reviewed the claims file, the examiner noted that the
Veteran's disorder had worsened in severity in the previous
two years, probably due to the conflict in Iraq. However,
the Veteran found his participation in the VA psychiatric
program to be beneficial. The GAF score was 42.
In a December 2004 VA treatment record, the Veteran returned
for treatment after an absence of three months. He stated
that, over that period, he slept a lot, missed doses of
medication, and experienced depression. He indicated that he
thought that the examiner would "yell at" him and expressed
surprise when she did not take such actions. The examiner
noted that the Veteran appeared disheveled, somewhat
depressed, and quite anxious at first. During the session,
he calmed down. The examiner noted no suicidal or homicidal
ideation. The GAF score was 40, indicating some impairment
in reality testing or communication (e.g., speech is at times
illogical, obscure, or irrelevant) or major impairment in
several areas, such as work or family relations, judgment,
thinking, or mood (e.g., depressed man avoids friends,
neglects family, and is unable to work).
In a January 2005 VA treatment record, the Veteran reported
containing the anger he felt toward his ex-wife due to he
plans to take their son out of school for a trip to Disney
World. He stated that he recently "blew his stack" at a
relative who supported the Iraq conflict. He indicated that
he was feeling more isolative and more irritable. The
examiner noted that the Veteran was experiencing increased
symptoms of PTSD, but that he had been coping safely. There
was no evidence of suicidal or homicidal ideation. The GAF
score was 44, indicating serious symptoms or any serious
impairment in social or occupational functioning.
In a subsequent January 2005 VA treatment record, the Veteran
reported feeling run down and tired. He and the examiner
discussed how he could appear at a family party without
triggering his rage. The examiner noted that the Veteran was
calm and focused during the session. She indicated that the
Veteran had chronic severe symptoms of PTSD, but that he was
coping safely. She stated that he was not a danger to
himself or others. The GAF score was 45.
In a March 2005 VA treatment record, the Veteran reported
experiencing several angry outbursts directed at strangers.
In one instance, the Veteran became angry with a driver who
had entered a crosswalk interfered with his right of way.
After the driver parked, the Veteran confronted him, followed
him, yelled at him, and shoved him. The driver did not
respond, but walked away despite the Veteran's attempts to
draw him into a fight. A few days later, as the Veteran
stopped at a light, another driver "leaned on the horn at
him." The Veteran jumped out of the car, ran back to the
other car, and attempted to confront the other driver. When
the other driver would not roll down his window to speak to
him, the Veteran kicked his door. When the light changed,
the other driver drove away. The Veteran expressed some
concern that he could not back down from either incident.
The examiner noted that the Veteran appeared anxious and
focused during this session. He appeared to have an
exacerbation of symptoms, including angry outbursts during
which he verbally and physically threatened others. He
indicated that he had not experienced any further outbursts
since increasing his medication. He denied homicidal or
suicidal ideation. The GAF score was 40, indicating some
impairment in reality testing or communication or major
impairment in several areas, such as work or family
relations, judgment, thinking, or mood.
In an April 2005 VA treatment record, the Veteran stated that
he spent most of his time sitting and staring. He reported
that he only ate once a day, if he ate at all. He had felt
significantly less irritable, to the point where he felt that
anyone could do anything to him and he would not defend
himself. As a result, he felt very week. He stated that he
felt as if he were "floating through time" without
experiencing much, as if nothing had happened that year. The
examiner noted that he appeared depressed and anxious
initially, and that he had jumped when she called his name in
the reception area. During examination, he calmed down,
smiled, and appeared to enjoy the chance to tell his story.
There was no suicidal or homicidal ideation. The GAF score
was 40.
In a May 2005 VA treatment record, the Veteran stated that,
due to financial pressures, he currently was living with his
siblings, moving from house to house. He stated that,
although he had not experienced angry episodes during the
past month, he did not like the medication he was taking. He
indicated that, because he was no longer hyperaroused, he
felt defenseless and unable to stand up for himself. He
stated "I only win when I rage." He stated that he was so
used to being angry, he did not recognize himself. The GAF
score was 40.
In a subsequent May 2005 VA treatment record, the Veteran
acknowledged thinking about suicide sometimes, but denied
having any plan or intent. The examiner noted no homicidal
ideation.
In a July 2005 VA treatment record, the examiner noted that
the Veteran appeared healthier, and that he was not a danger
to himself or others. The GAF was 43, indicating serious
symptoms or any serious impairment in social or occupational
functioning.
In an August 2005 VA treatment record, the Veteran reported
that he was still moving from family member to family member
to have a place to live due to financial difficulties. He
recently moved out of his sister's house after she became
verbally abusive, triggering his anger. After he threatened
her verbally, she threatened to call the cops, causing him to
depart. The examiner noted that the Veteran was doing the
best he could under the circumstances to maintain an adequate
diet and basic hygiene. The Veteran stated that he still had
transient suicidal thoughts, but denied any intent to act on
them. He also stated that he ahd thoughts of hurting others,
but denied having a specific target, plan, or intent. The
examiner advised the Veteran to unload his pistols and keep
the ammunition and the firearms in separate boxes. The
Veteran was not receptive to this idea. The GAF score was
40, indicating some impairment in reality testing or
communication or major impairment in several areas, such as
work or family relations, judgment, thinking, or mood.
In a subsequent August 2005 VA treatment record, the Veteran
again would not discuss his pistols except to say that he
would not use them unless he became terminally ill. The
examiner again noted that the Veteran was homeless and having
difficulty taking care of his personal needs, such as
laundry. The GAF score was 40.
In a February 2006 VA treatment record, the examiner noted
that the Veteran was irritable, but calmed quickly. The
Veteran stated that he had been more irritable lately, but
coped by putting on a relaxation tape. There was no suicidal
or homicidal ideation. The GAF score was 45, indicating
serious symptoms or any serious impairment in social or
occupational functioning.
In a May 2006 VA treatment record, the examiner noted that
the Veteran appeared disheveled and preoccupied. The GAF
score was 47.
In an additional May 2006 VA treatment record, written the
same day, the Veteran stated that he felt tired and
miserable. The examiner noted that the Veteran seemed to
have lost track of time, as he mentioned seeing her a week
ago although actually it had been a month. He indicated that
he had not been able to do much lately except walking, lying
on the hood of his car, and sitting. He stated that it had
been hard to keep track of his medication due to his housing
situation. He reported being negativistic and irritable. He
acknowledged some episodes of verbal anger with "threatening
moves," but no physical aggression. He acknowledged passive
suicidal ideation, but denied any active ideation. The
examiner noted no homicidal ideation. The GAF score was 45.
In a July 2006 statement, the VA examiner who had written
most of the VA treatment records included in the claims file,
indicated that the Veteran's PTSD was chronic and severe.
She stated that, although the Veteran was compliant with
treatment and worked hard at therapy, he had made only
minimal progress toward symptom relief and stabilization. In
her opinion, the Veteran's prognosis was, at best, guarded
and he was likely to remain significantly impaired due to his
PTSD for the rest of his life. She stated that, in her
opinion, the Veteran was permanently and totally disabled and
unemployable due to his service-connected PTSD. She
indicated that her work with the Veteran was mostly
supportive, trying to maintain him at his current level and,
if possible, to avert any slippage to a lower level of
functioning. His current GAF score was 39, indicating some
impairment in reality testing or communication or major
impairment in several areas, such as work or family
relations, judgment, thinking, or mood.
In an August 2006 VA PTSD examination report, the examiner
noted that the Veteran was unable to work, not only due to
his PTSD symptoms, but due to other problems as well. There
was no expectation that he would ever be employed again. The
examiner noted that the Veteran related to a few family
members and acquaintances, but was not really functioning.
He would avoid social interaction, withdraw into himself, and
was nearly surviving in a marginal way. There was no
impairment of thought processes or communications. He was
dysfunctional and making a marginal adjustment, but he was
not considered psychotic. His current activities of daily
living consisted of moving from place to place, seeking a
place to sleep or reside for a brief time. He could no
longer read or concentrate or focus his attention. He was
preoccupied with the trauma in Vietnam. He had only one
mental disorder, PTSD, with recurrence, hyperarousal, and
avoidance symptoms in abundance. He was able to manage his
own benefits. Symptoms included nightmares five times per
week; a propensity to anger, quickly aroused and violent,
with noted irritability and a low frustration tolerance;
chronic depression, with a fear of being hurt; flashbacks
several times per month; chronic insomnia; difficulty
focusing and maintaining attention; avoidance of people;
difficulty showing feelings; hypervigilance; and avoidance of
war imagery. Upon examination, the examiner noted that the
Veteran was cleanly dressed, but extremely anxious and jumpy
and sometimes tearful. He was cooperative, open, direct, and
responsive to questions. Eye contact was limited as the
Veteran had a tendency to look off into the distance. He
tended to walk slowly. His mood was sad and depressed, and
his affect was constricted. When he spoke, it was in a low
voice. He tended to ramble and had to be interrupted. He
was goal-directed and linear in his thinking. However, he
was obviously anxious, paranoid, and preoccupied with anger
and violence from his Vietnam memories. The Veteran
acknowledged suicidal ideation and said that he had seriously
considered suicide four years ago. He denied homicidal
ideation, but indicated awareness of his anger and rage
toward specific individuals whom he hated. He denied
auditory hallucinations, but admitted visual hallucinations
of seeing movement and thinking someone was there when no one
else was present. He stated that his worst hallucination
occurred some years ago while he was driving. He recalled
seeing a tractor trailer falling from the sky in front of
him, causing him to slam on the brakes. As the tractor
trailer was not real, he realized that he almost caused a
tremendous accident. The examiner stated that the Veteran
was able to manage his own funds, but was not employable due
to severe combat stress, depression, and marked medical
problems. In his conclusions, the examiner described the
Veteran as a man obsessed by Vietnam memories all the time
that could no longer function in any capacity except to
survive in a marginal way. The GAF score was 40.
In a May 2007 VA treatment record, the Veteran stated that he
was now living with friends. He indicated that he had the
money to get his own place, but that most landlords wanted to
rent to an individual with a recent credit history. He also
stated that he feared being alone as his eyesight worsened.
Upon examination, the examiner noted that his mood was
somewhat depressed, but that the Veteran expressed humor
during the session. She stated that the Veteran was not a
danger to himself and others. The GAF score was 44,
indicating serious symptoms or any serious impairment in
social or occupational functioning.
At the December 2007 Board hearing, the Veteran stated that
he was taking medications to stop him from hurting others and
from hurting himself. He recalled that he got into a fight
with two men in their 20s at a family party a few months
prior. (Hearing Transcript, pages 4-5). The Veteran stated
that he was disoriented occasionally and had problems with
memory. (Hearing Transcript, page 7). The Veteran stated
that he had no feelings except anger and that he would not
cry if his children died. (Hearing Transcript, page 20).
Under the regulations, a 50 percent rating is warranted when
there is "occupational and social impairment with reduced
reliability and productivity due to such symptoms as:
flattened affect; circumstantial, circumlocutory, or
stereotyped speech; panic attacks more than once a week;
difficulty in understanding complex commands; impairment of
short-and long-term memory (e.g., retention of only highly
learned material, forgetting to complete tasks); impaired
judgment; impaired abstract thinking; disturbances of
motivation and mood; difficulty in establishing and
maintaining effective work and social relationships." 38
C.F.R. § 4.130, DC 9440.
A 70 percent rating is not warranted unless there is
disability reflecting deficiencies in most areas, such as
work, school, family relations, judgment, thinking, or mood,
due to such symptoms as: suicidal ideation; obsessional
rituals which interfere with routine activities; speech
intermittently illogical, obscure, or irrelevant; near-
continuous panic or depression affecting the ability to
function independently, appropriately and effectively;
impaired impulse control (such as unprovoked irritability
with periods of violence); spatial disorientation; neglect of
personal appearance and hygiene; difficulty in adapting to
stressful circumstances (including work or a worklike
setting); inability to establish and maintain effective
relationships. Id.
The maximum scheduler rating, of 100 percent, requires total
occupational and social impairment due to such symptoms as
gross impairment in thought processes or communication,
persistent delusions or hallucinations, grossly inappropriate
behavior, persistent danger of hurting self or others,
intermittent inability to perform activities of daily living,
disorientation to time or place, memory loss for names of
close relatives, own occupation, or own name. Id.
Applying the current regulations to the facts in this case,
the Board finds that a disability rating of 70 percent is
warranted for the Veteran's PTSD prior to May 12, 2006.
During this period, the Veteran consistently showed near-
continuous depression affecting his ability to function
independently, appropriately and effectively; impaired
impulse control, including many noted instances of
unwarranted violence; difficulty in adapting to stressful
circumstances due to a low frustration threshold; and an
inability to establish and maintain effective relationships.
Further, the Veteran's GAF scores for this period, ranging
from 40 to 50, indicated major social and occupational
impairment, consistent with the 70 percent score.
The Board notes that at no time during the period on appeal,
either prior to or from May 12, 2006, does the evidence
indicate that the Veteran's PTSD disorder warrants a rating
in excess of 70 percent. The Board notes that the Veteran
has great limitations both occupationally and socially due to
his PTSD, in combination with other physical ailments. The
Veteran has also recently given accounts regarding occasional
hallucinations. However, the record does not indicate that
the Veteran experiences gross impairment in thought processes
or communication, or persistent delusions or hallucinations.
Although the Veteran displays irritable behavior with
occasional outbursts, the evidence does not show that his
overall behavior is grossly inappropriate. Moreover, despite
some suicidal ideation and violent interactions, the
treatment records consistently indicate that the Veteran is
not a persistent danger to himself or others. Even in
difficult situations, the Veteran has shown ability to
perform activities of daily living, such as handling his
money. Finally, although the Veteran has indicated some
feelings of disorientation, the objective evidence of record
does not indicate consistent disorientation to time or place.
Also, the evidence does not show that the Veteran's
experiences memory loss for names of close relatives, own
occupation, or own name. The Veteran's GAF scores, ranging
from 39 to 50, do not contemplate the total occupation and
social impairment contemplated in the next highest 100
percent rating. Overall, the Board finds that a rating is
excess of 70 percent is not warranted under the regulations.
38 C.F.R. § 4.130, DC 9440. As the preponderance of the
evidence is against this part of the Veteran's claims, the
reasonable doubt doctrine is not for application. 38
U.S.C.A. § 5107.
Extraschedular ratings
The Board also has considered whether the Veteran is entitled
to a greater level of compensation on an extraschedular
basis. Ordinarily, the VA Schedule will apply unless there
are exceptional or unusual factors which would render
application of the schedule impractical. See Fisher v.
Principi, 4 Vet. App. 57, 60 (1993).
According to the regulation, an extraschedular disability
rating is warranted based upon a finding that the case
presents such an exceptional or unusual disability picture
with such related factors as marked interference with
employment or frequent periods of hospitalization that would
render impractical the application of the regular scheduler
standards. See 38 C.F.R. § 3.321(b)(1). An exceptional case
is said to include such factors as marked interference with
employment or frequent periods of hospitalization as to
render impracticable the application of the regular scheduler
standards. See Fanning v. Brown, 4 Vet. App. 225, 229
(1993).
Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-
step inquiry for determining whether a Veteran is entitled to
an extraschedular rating. First, the Board must determine
whether the evidence presents such an exceptional disability
picture that the available scheduler evaluations for that
service-connected disability are inadequate. Second, if the
scheduler evaluation does not contemplate the claimant's
level of disability and symptomatology and is found
inadequate, the Board must determine whether the claimant's
disability picture exhibits other related factors such as
those provided by the regulation as "governing norms."
Third, if the rating schedule is inadequate to evaluate a
Veteran's disability picture and that picture has attendant
thereto related factors such as marked interference with
employment or frequent periods of hospitalization, then the
case must be referred to the Under Secretary for Benefits or
the Director of the Compensation and Pension Service to
determine whether, to accord justice, the Veteran's
disability picture requires the assignment of an
extraschedular rating.
With respect to the first prong of Thun, the evidence in this
case does not show such an exceptional disability picture
that the available scheduler evaluation for the service-
connected PTSD is inadequate. As explained prior, the
evidence indicates that the Veteran's PTSD causes
deficiencies in most areas and an inability to adapt to
stressful situations, such as a work environment. As these
criteria are contemplated in the 70 percent rating assigned
by this decision, the Board finds the current scheduler
evaluations to be adequate. The record also does not show
that the Veteran has required frequent hospitalizations for
his PTSD. Indeed, it does not appear from the record that he
has been hospitalized at all for that disability. Finally,
the Board notes that, in a July 2006 letter, a VA examiner
stated that the Veteran was permanently and totally disabled
and unemployable due to his service-connected PTSD. However,
the Board notes that the other evidence of record, to include
May 2003 Social Security Administration decision and the
August 2006 VA PTSD examination report, indicates that the
Veteran cannot work due to other medical conditions in
addition to PTSD. In fact, the evidence shows that the
Veteran left his last position due to emphysema, not PTSD.
The Board also notes that, in the remand portion of his
decision, the Board will request that a VA examiner review
all the evidence to conclude whether the Veteran is
unemployable solely due to his PTSD disorder. However, as
the record currently stands, the Board finds that the
evidence does not show such an exceptional disability picture
to render the schedular evaluation assigned for the Veteran's
PTSD to be inadequate.
In short, the record does not indicate that this service-
connected disability on appeal causes impairment with
employment over and above that which is contemplated in the
assigned scheduler rating. See Van Hoose v. Brown, 4 Vet.
App. 361, 363 (1993) (noting that the disability rating
itself is recognition that industrial capabilities are
impaired). The Board therefore has determined that referral
of this case for extraschedular consideration pursuant to 38
C.F.R. § 3.321(b)(1) is not warranted.
ORDER
Prior to May 12, 2006, entitlement to an initial rating for
posttraumatic stress disorder (PTSD) of 70 percent, but no
greater than 70 percent, is granted.
From May 12, 2006, entitlement to a staged rating in excess
of 70 percent for posttraumatic stress disorder (PTSD) is
denied.
REMAND
Recently, the Court of Appeals for Veterans Claims held that
a claim for TDIU exists as part of a claim for an increase
(whether in an original claim or as part of claim for
increased rating). Rice v. Shinseki, 22 Vet. App. 447
(2009). In fact, in an October 2007 VA treatment record, the
Veteran also stated that he actually was seeking
unemployability as part of this appeal. The record is not
sufficient for the Board to be able to adjudicate that part
of the claim. First, the Board notes that the most recent
treatment records included in the claims file date to
December 2007. As such, a remand is necessary to acquire all
pertinent medical records from VA facility or non-VA
facilities, to include records from the VA Medical Center in
Philadelphia, Pennsylvania. 38 U.S.C.A. § 5103A(c)(2) (West
2002 & Supp. 2009). After such records are acquired, the
AMC/RO must schedule the Veteran for a VA examination and to
obtain an opinion as to whether his service-connected PTSD
prevents him from working. VA's duty to assist includes a
duty to provide a medical examination or obtain a medical
opinion only when it is deemed necessary to make a decision
on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. §
3.159(c)(4) (2009).
Accordingly, the case is REMANDED for the following action:
1. The AMC/RO should request the Veteran
to identify the names, addresses, and
approximate dates of treatment for all VA
and non-VA health care providers who
provided treatment for his PTSD since
December 2007. After securing the
necessary releases, the RO should attempt
to obtain copies of pertinent treatment
records identified by the appellant. At a
minimum, the AMC/RO should procure all
relevant records from the VA Medical
Center in Philadelphia, Pennsylvania dated
since December 2007.
2. The AMC/RO should schedule the Veteran
for an appropriate VA examination. The
claims folder should be made available to
and reviewed by the examiner. All
appropriate tests and studies should be
conducted. Thereafter, the examiner
should opine as to whether, without regard
to the Veteran's age or the impact of any
nonservice-connected disabilities, it is
at least as likely as not that his
service-connected PTSD, in and of itself,
renders him unable to secure or follow a
substantially gainful occupation. A
complete rationale for any opinion
expressed and conclusion reached should be
set forth in a legible report.
3. After completion of the foregoing, the
AMC/RO should re-adjudicate the claim. If
the benefit sought remains denied, the
Veteran and his representative must be
furnished an SSOC and be given an
opportunity to submit written or other
argument in response before the claims
file is returned to the Board for further
appellate consideration.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
______________________________________________
ROBERT C. SCHARNBERGER
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs